Navigating CFIUS law with partner Anne Salladin, a 2024 Foreign Investment Watch “Top Advisor”

A successful legal career in highly regulated industries requires a recipe of unwavering determination and continuous learning, complimented by exceptional negotiation skills and a dash of serendipity. Partner Anne Salladin, who was recently recognized as a 2024 “Top Advisor” by Foreign Investment Watch, unveils her strategies for guiding clients through the intricate processes of the Committee on Foreign Investment in the United States (CFIUS). In this Q&A, discover the approach that has cemented Anne's status as a leading authority in CFIUS law and foreign investment.

1. What motivates you in your practice with foreign investment clients across multiple sectors?

I spent nearly twenty years at Treasury’s General Counsel’s office working on an array of interesting matters. My introduction to foreign investment was entirely serendipitous. One day, one of my Treasury colleagues came into my office and asked if I’d like to handle a CFIUS case, one of the first notable ones in the early 2000s. I said yes and never looked back. This case was followed by a famous national security-related ports case.

These were the days when Treasury had only two lawyers working on CFIUS matters, as opposed to now with north of 30. The work is both transactional and policy oriented (in this case, national security policy). For me, the intersection of policy and law is fascinating and has sustained my career over time. There’s nothing like government service in the sense that not only are you being of service to your country, but you are also working on some of the most interesting and visible issues of the day.

2. Have there been any particular industry sectors that have seen increasing CFIUS scrutiny in recent years?

Yes, a number of sectors have experienced increased scrutiny as the national security landscape has evolved over time, particularly in response to the extraordinary explosion of Chinese investment starting around 2012. Recent global developments – for example, digitization and increased state-sponsored investment – and shifts in the nature of foreign investment have exposed areas that now arguably raise issues from a national security perspective.

One of the areas that is now front and center as a concern for CFIUS is sensitive personal data, including across popular social media and dating apps. CFIUS has been concerned about sensitive personal data for a number of years now, but the scope of the concern has broadened beyond the Committee’s original concerns, which were largely centered on personal data of government employees. Of course, as you can imagine, collection of data can be present in any industry – think insurance, dating apps, etc. So while historically CFIUS was thought of as largely relevant to defense industries, that isn’t the case anymore – CFIUS can have implications for any industry. This focus on data has meant that lots of companies that have never had to consider CFIUS now need to, particularly in a world where a transaction may be subject to a mandatory filing requirement. Another area of increased focus for CFIUS going forward, largely informed by the pandemic, will be biotech and the health care sector, and particularly health-related supply chain issues.

3. As geopolitical and economic landscapes evolve – particularly during an election year – what will be the key to successful foreign investment?

This year is likely to be challenging, no doubt, despite largely bipartisan agreement on many foreign investment issues. 

Despite some accounts, the CFIUS process is not an inherently political one. National security analyses are done by career civil servants and CFIUS is clearly focused on national security concerns, though what constitutes a national security concern has evolved over time. And, of course, as we have seen these days, in some cases, economic security concerns can rise to the level of presenting national security concerns. Because there is no definition of “national security” in the law, the U.S. government has the flexibility to view that concept as it evolves over time as the investment landscape changes.

However, there is always the potential for any particular transaction to be politicized, as has been the case in recent years. Confidentiality restrictions that limit the ability of CFIUS to comment on or even acknowledge publicly that particular cases are under review by the Committee help to protect against politicization, but that only goes so far in certain instances. I would expect this year to be in line with other years in which there have been significant elections – that is, that there is a greater risk that more cases will become politicized. With that being said, I would also expect that the same tried and true techniques that make for a successful case will continue to be important, including understanding how to position a deal before CFIUS in a way that addresses CFIUS’s concerns while also addressing a client’s business interests. The best cases deliver a win for the U.S. government and a win for your client.

4. What have you learned in your own career development that you would like to share with junior or aspiring lawyers?

Upon reflection, much of how my career has played out has been serendipitous – that is, I happened to be in a particular place at a particular moment in time. In my experience, it’s critical to be open to taking advantage of new opportunities when they come along – you may never see them again. Also important is to get a broad exposure to your chosen area, understand the policy underpinnings of the law and, needless to say, immerse yourself in understanding your client’s business.

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